Robert’s Decision Endangers Religious Liberty

The recent Supreme Court ruling on Obamacare (Patient Protection and Affordable Care Act), which upheld the individual mandate as constitutional, portends grave danger for those religious organizations now suing the federal government for infringing on their religious liberty.

These groups rightly contend that the government has no right to decide who is religious enough to be exempt from government mandates. The department of Health and Human Services (HHS) requirement to provide free contraception and insurance coverage would force church-related organizations to violate church doctrine.

Although the recent Supreme Court decision National Federation of Independent Business et al. v. Sebelius Secretary of Health and Human Services, etal. does not settle the religious liberty exemption demanded by the churches, it does however, open the door for the Supreme Court to redefine what constitutes a church organization.

Here is why.

When Chief Justice John A. Roberts wrote the opinion for the majority, he basically rewrote a piece of congressional legislation in order to get the result he wanted by calling the mandate a tax instead of a penalty, which is what Congress approved.

Why did he do this?

For the past seven years, Roberts had been viewed as a conservative justice. However, a conservative read of the law requires an originalist interpretation of the Constitution and acts of Congress. In other words, a judge reads what is written in the text and then adjudicates upon it. This philosophy is clearly evidenced in the minority dissent.

Roberts is a purposivist. He believes that courts should read statutes in context in order to fulfill the legislative purpose. By changing the stated penalty into a tax, which he rightly contends is the prerogative of Congress, he used judicial license to foster what he deemed to be the purpose of Congress in passing the bill. It is important to emphasize that the president, the Congress, nor the lower courts ever recognized this as atax.

This being the case, a red flag should go up for those organizations seeking a religious exemption from the HHS mandate. Roberts’ purposivist philosophy would permit a redefinition of areligious institution, as the HHS mandate demands, in order to provide the universal health care envisioned by the legislation.

The fact that Congress has for some time been acting as though the Supreme Court is the supreme branch of government, having the last word, and against whose judgments the elective branches have no appeal portends grave danger for religious liberty and for democracy itself. As Abraham Lincoln said in his First Inaugural Address:

“[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

There are, of course, parallels in Roe v Wade (1973) where the court held that abortion was permitted as a private right in the penumbras and emanations of the Fourteenth Amendment. Here, in this decision Justice Harry Blackman imagined something obviously not there. The Roberts decision is even worse because he brazenly rewrote the law to make it constitutional.

Some may take succor in the Hosanna – Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2011) decision where in an employment case the court unanimously refused to interfere with the right of a church to designate who it considers to be a minister. Yet, this ruling is very narrow. It fits the parameters of the present HHS exemption offered for the inter-ecclesial operations only. In no way does it deal with church-affiliated organizations or their rights, which HHS claims deserve a lesser degree of protection.

It must also be recalled that in Employment Division Department of Human Services v. Smith (1990), that the court upheld Oregon’s prohibition of the use of peyote for religious services based on the belief that the First Amendment does not mandate that religious exemptions be made to generally applicable law.

This understanding is evidenced in a recent Public Religion Research Institute (PRRI) survey, which found that Catholics like most Americans believe that most employers should be required to provide employees with health care plans that cover contraception at no cost.

The Roberts’ decision leaves the door open for further judicial activism which may endanger our religious liberty. Furthermore, the PRRI survey reports that 57% of Catholics do not believe that religious liberty is being threatened. Recall, that 54% of Catholics voted for Obama in the 2008 election. Church leaders have until this coming November to make their case with their congregants and the American people. A failure to elect a new Congress and a new president, in order to overturn Obamacare, will surely curtail church activity to the sacristy.